Cashgate prosecutions are a mockery to Malawi criminal justice system

Although in the past week Malawian media has been replete with headlines that the US$100 million Cashgate scandal trials have started, the truth behind the headlines is that the so-called cashgate trials are simply publicity stunts, and to those with any legal understanding, a mockery of the Malawian criminal justice System.

The Malawian Director of Public Prosecutions (DPP), the man the government has entrusted with these very important trials, is Bruno McDonald Kalemba. Bruno Kalemba is a career civil servant. He has served in the Ministry of Justice for at least 20 years with unswerving loyalty, sticking to the Ministry in the challenging Legal Aid Department when so many of his peers sought greener pastures. Like President Joyce Banda, he is the son of a policeman; except that his father was among the defendants in the Mwanza murders trial along side former President Kamuzu Banda.

In view of his long service to the Ministry, it was no wonder that the Joyce Banda regime rewarded him with the top prosecutor’s post. Kalemba’s prosecutorial skills, however, are pretty much non-existent. Not that his appointment was a strange one, or the first of it’s kind, as those familiar with the motives behind most appointments in Malawi have cause to know.

Kasambara and Manondo in court being interviewed by reporters.- Photo credit -Oracle

For the first part of his tenure as DPP, Kalemba’s performance was miserable. It was as though he did not exist. He did nothing remarkable with regard to bringing the July 20 shooting suspects to book and his performance with the “midnight six” treason case was equally bland. So tentative and lukewarm was his performance that the President is said to have fired him more than once, only for Kalemba to be reinstated after shedding a few tears.

With the advent of Cashgate, all of a sudden, Kalemba is the life of the party. To prove his loyalty he has been stirred into action with amazing vigour, even exceeding the bounds of legal reason. He has been in the media, and has even made some very surprising comments in court.

For example, Kalemba promised the nation that cashgate cases were ready for trial, and yet on 28 January, submissions from the defence showed that the State had overlooked some vital processes such as disclosure and committal.

Now, even first year law students would tell you these are the first fundamental basics of criminal procedure. Did Kalemba deliberately overlook them so that the suspects could eventually go free?

Secondly, the charges the State is coming up with in the cashgate trial are equally dubious. Ralph Kasambara, for instance, has been charged with money laundering when no-one has been charged with a criminal offence to do with acquiring the money that was laundered. The list is endless. It is as if whoever drafted these cashgate indictments does not want anyone to get a conviction. Could this be the whole point?

Another mockery to the Malawian criminal justice system in the Cashgate trials is the bringing in of the hired guns. The start of the Cashgate trials has introduced two new players to the saga. The first is Kamudoni Nyasulu. Nyasulu is a former DPP who is now a renowned international prosecutor. He was once Kalemba’s boss when Kalemba was a lowly State advocate. Nyasulu is famous for not having won a case in his tenure as DPP.

The second character in the saga is Enock Daniel Chibwana. Chibwana is a former Chief State Advocate and Ombudsman, who had an unremarkable career in prosecutions, and is also a former boss of Kalemba.

These two undistinguished lawyers have been contracted to handle all matters regarding cashgate. The question that must be pursued here is a simple one: What is Kalemba’s job? Why should there be someone else rought in to handle Kalemba’s work? How much is the taxpayer coughing up and why can’t Kalemba handle it himself? If it is a question of competence, why was he appointed DPP? If its a question of expertise, what high level cases have Nyasulu and Chibwana ever won? And if it is because Bruno is busy, what is he busy doing when Fanikiso’s killers, July 20 shooters, the treason case, and many other cases are still pending?

Or is part of this wider conspiracy which features the strategy to lose the cases, that is why these two prosecutors with no glowing track record of success, at least locally, have been enlisted?

Malawians need to realise that the task to make the Joyce Banda administration accountable regarding Cashgate, and indeed regarding every other policy and executive decision she is making is a serious one. It is now common knowledge that only the little fish and sacrificial lambs have been arrested in this matter.

The government is busy with diversion tactics and smokescreens, persecuting Ralph Kasambara and making him the big story. All this is in order to prevent Malawians from asking the real questions: How could so much money go missing without the sanction of big fish? Why is Paul Mphwiyo being treated as a whistle blower? Where are Mphwiyo’s tax returns to attest the business interests that have sustained his flamboyant lifestyle? Bruno Kalemba is shielding Paul Mphwiyo, refusing to release call logs of Lutepo and Mphwiyo apparently because he will not use them in the case against Kasambara.

Even those with elementary legal knowledge know that the prosecutions is required by law to disclose both the evidence it is going to use and the evidence it is not going to use. Kalemba’s reluctance and such ridiculous reasoning could only mean one of two things. He is either incompetent or misplaced loyalty has worn out his integrity, independence and professionalism. This is perhaps hardly surprising when he is being goaded on by Fahad Assani, a Minister who clearly has confused his former role as DPP with his current one of Minister, and in the process, made a mockery of Malawi’s criminal justice system.